John Doe v. DeRay Mckesson , 935 F.3d 253 ( 2019 )

Case: 17-30864 Document: 00515069317 Page: 1 Date Filed: 08/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30864 FILED
August 8, 2019
Lyle W. Cayce
OFFICER JOHN DOE, Police Officer, Clerk
Plaintiff - Appellant
v.
DERAY MCKESSON; BLACK LIVES MATTER; BLACK LIVES MATTER
NETWORK, INCORPORATED,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
ON PETITION FOR PANEL REHEARING
Before JOLLY, ELROD, and WILLETT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The petition for panel rehearing is hereby GRANTED. We WITHDRAW
the court’s prior opinion of April 24, 2019, and substitute the following opinion.
During a public protest against police misconduct in Baton Rouge,
Louisiana, an unidentified individual hit Officer John Doe with a heavy object,
causing him serious physical injuries. Following this incident, Officer Doe
brought suit against “Black Lives Matter,” the group associated with the
protest, and DeRay Mckesson, one of the leaders of Black Lives Matter and the
organizer of the protest. Officer Doe later sought to amend his complaint to
Case: 17-30864 Document: 00515069317 Page: 2 Date Filed: 08/08/2019
No. 17-30864
add Black Lives Matter Network, Inc. and #BlackLivesMatter as defendants.
The district court dismissed Officer Doe’s claims on the pleadings under
Federal Rule of Civil Procedure 12(b)(6), and denied his motion to amend his
complaint as futile. Because we conclude that the district court erred in
dismissing the case against Mckesson on the basis of the pleadings, we
REMAND for further proceedings relative to Mckesson. We further hold that
the district court properly dismissed the claims against Black Lives Matter. 1
We thus REVERSE in part, AFFIRM in part, and REMAND for further
proceedings not inconsistent with this opinion.
I.
On July 9, 2016, a protest took place by blocking a public highway in
front of the Baton Rouge Police Department headquarters. 2 This
demonstration was one in a string of protests across the country, often
associated with Black Lives Matter, concerning police practices. The Baton
Rouge Police Department prepared by organizing a front line of officers in riot
gear. These officers were ordered to stand in front of other officers prepared to
make arrests. Officer Doe was one of the officers ordered to make arrests.
DeRay Mckesson, associated with Black Lives Matter, was the prime leader
and an organizer of the protest.
In the presence of Mckesson, some protesters began throwing objects at
the police officers. Specifically, protestors began to throw full water bottles,
which had been stolen from a nearby convenience store. The dismissed
complaint further alleges that Mckesson did nothing to prevent the violence or
to calm the crowd, and, indeed, alleges that Mckesson “incited the violence on
We do not address any of the allegations raised by the Proposed Amended Complaint.
1
See note 5, infra.
2 This case comes to us on a motion to dismiss, so we treat all well-pleaded facts as
true.
2
Case: 17-30864 Document: 00515069317 Page: 3 Date Filed: 08/08/2019
No. 17-30864
behalf of [Black Lives Matter].” The complaint specifically alleges that
Mckesson led the protestors to block the public highway. The police officers
began making arrests of those blocking the highway and participating in the
violence.
At some point, an unidentified individual picked up a piece of concrete
or a similar rock-like object and threw it at the officers making arrests. The
object struck Officer Doe’s face. Officer Doe was knocked to the ground and
incapacitated. Officer Doe’s injuries included loss of teeth, a jaw injury, a brain
injury, a head injury, lost wages, “and other compensable losses.”
Following the Baton Rouge protest, Officer Doe brought suit, naming
Mckesson and Black Lives Matter as defendants. According to his complaint,
the defendants are liable on theories of negligence, respondeat superior, and
civil conspiracy. Mckesson subsequently filed two motions: (1) a Rule 12(b)(6)
motion, asserting that Officer Doe failed to state a plausible claim for relief
against Mckesson and (2) a Rule 9(a)(2) motion, asserting that Black Lives
Matter is not an entity with the capacity to be sued.
Officer Doe responded by filing a motion to amend. He sought leave to
amend his complaint to add factual allegations to his complaint and Black
Lives Matter Network, Inc. and #BlackLivesMatter as defendants.
II.
The district court granted both of Mckesson’s motions, treating the Rule
9(a)(2) motion as a Rule 12(b)(6) motion, and denied Officer Doe’s motion for
leave to amend, concluding that his proposed amendment would be futile.
With respect to Officer Doe’s claims against #BlackLivesMatter, the district
court took judicial notice that it is a “hashtag” and therefore an “expression”
that lacks the capacity to be sued. With respect to Officer Doe’s claims against
Black Lives Matter Network, Inc. the district court held that Officer Doe’s
allegations were insufficient to state a plausible claim for relief against this
3
Case: 17-30864 Document: 00515069317 Page: 4 Date Filed: 08/08/2019
No. 17-30864
entity. Emphasizing the fact that Officer Doe attempted to add a social
movement and a “hashtag” as defendants, the district court dismissed his case
with prejudice. Officer Doe timely appealed.
III.
When considering a motion to dismiss under Rule 12(b)(6), we will not
affirm dismissal of a claim unless the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief. Alexander v. Verizon
Wireless Servs., L.L.C., 875 F.3d 243, 249 (5th Cir. 2017). “We take all factual
allegations as true and construe the facts in the light most favorable to the
plaintiff.” Id. (citing Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017)). To
survive, a complaint must consist of more than “labels and conclusions” or
“naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007) (internal quotation marks and brackets omitted)). Instead, “the
plaintiff must plead enough facts to nudge the claims across the line from
conceivable to plausible.” Hinojosa v. Livingston, 807 F.3d 657, 684 (5th Cir.
2015) (internal quotation marks, brackets, and ellipses omitted) (quoting
Iqbal, 556 U.S. at 680). 3
3 Federal Rule of Civil Procedure Rule 9(a)(2) states that, if a party wishes to raise an
issue regarding lack of capacity to be sued, “a party must do so by a specific denial.” Rule
12(b) does not specifically authorize a motion to dismiss based on a lack of capacity.
Nonetheless, we have permitted Rule 12(b) motions arguing lack of capacity. See, e.g., Darby
v. Pasadena Police Dep’t, 939 F.2d 311 (5th Cir. 1992). Where the issue appears on the face
of the complaint, other courts have done the same and treated it as a Rule 12(b)(6) motion.
See, e.g., Klebanow v. N.Y. Produce Exch., 344 F.2d 294, 296 n.1 (2d Cir. 1965) (“Although the
defense of lack of capacity is not expressly mentioned in [R]ule 12(b), the practice has grown
up of examining it by a 12(b)(6) motion when the defect appears upon the face of the
complaint.”); Coates v. Brazoria Cty. Tex., 894 F. Supp. 2d 966, 968 (S.D. Tex. 2012) (“Whether
a party has the capacity to sue or be sued is a legal question that may be decided at the Rule
12 stage.”); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1294 (3d ed. 2018) (“An effective denial of capacity . . . creates an issue of fact.
Such a denial may be made in the responsive pleading or, if the lack of capacity . . . appears
on the face of the pleadings or is discernible there from, the issue can be raised by a motion
4
Case: 17-30864 Document: 00515069317 Page: 5 Date Filed: 08/08/2019
No. 17-30864
A district court’s denial of a motion to amend is generally reviewed for
abuse of discretion. Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th
Cir. 2016). However, where the district court’s denial of leave to amend was
based solely on futility, we instead apply a de novo standard of review identical
in practice to the Rule 12(b)(6) standard. Id. When a party seeks leave from
the court to amend and justice requires it, the district court should freely give
it. Fed. R. Civ. P. 15(a)(2).
IV.
A.
We begin by addressing Officer Doe’s claims against DeRay Mckesson.
The district court did not reach the merits of Officer Doe’s underlying state tort
claims, but instead found that Officer Doe failed to plead facts that took
Mckesson’s conduct outside of the bounds of First Amendment protected
speech and association. Because we ultimately find that Mckesson’s conduct
at this pleading stage was not necessarily protected by the First Amendment,
we will begin by addressing the plausibility of Officer Doe’s state tort claims.
We will address each of Officer Doe’s specific theories of liability in turn—
vicarious liability, negligence, and civil conspiracy, beginning with vicarious
liability.
1.
Louisiana Civil Code article 2320 provides that “[m]asters and
employers are answerable for the damage occasioned by their servants and
overseers, in the exercise of the functions which they are employed.” A
“servant,” as used in the Civil Code, “includes anyone who performs continuous
service for another and whose physical movements are subject to the control or
to dismiss for failure to state a claim for relief.” (footnotes omitted)). Thus, we review the
district court’s dismissal for lack of capacity de novo and apply the Rule 12(b)(6) standard.
5
Case: 17-30864 Document: 00515069317 Page: 6 Date Filed: 08/08/2019
No. 17-30864
right to control of the other as to the manner of performing the service.” Ermert
v. Hartford Ins. Co., 559 So. 2d 467, 476 (La. 1990). Officer Doe’s vicarious
liability theory fails at the point of our beginning because he does not allege
facts that support an inference that the unknown assailant “perform[ed] a
continuous service” for or that the assailant’s “physical movements [were]
subject to the control or right to control” of Mckesson. Therefore, under the
pleadings, Mckesson cannot be held liable under a vicarious liability theory.
2.
We now move on to address Officer Doe’s civil conspiracy theory. Civil
conspiracy is not itself an actionable tort. Ross v. Conoco, Inc., 828 So. 2d 546,
552 (La. 2002). Instead, it assigns liability arising from the existence of an
underlying unlawful act. Id. In order to impose liability for civil conspiracy in
Louisiana, a plaintiff must prove that (1) an agreement existed with one or
more persons to commit an illegal or tortious act; (2) the act was actually
committed; (3) the act resulted in plaintiff’s injury; and (4) there was an
agreement as to the intended outcome or result. Crutcher-Tufts Res., Inc. v.
Tufts, 992 So. 2d 1091, 1094 (La. Ct. App. 2008); see also La. Civ. Code art.
2324. “Evidence of . . . a conspiracy can be actual knowledge, overt actions
with another, such as arming oneself in anticipation of apprehension, or
inferred from the knowledge of the alleged co-conspirator of the impropriety of
the actions taken by the other co-conspirator.” Stephens v. Bail Enf’t, 690 So.
2d 124, 131 (La. Ct. App. 1997).
Officer Doe’s complaint is vague about the underlying conspiracy to
which Mckesson agreed, or with whom such an agreement was made. In his
complaint, Officer Doe refers to a conspiracy “to incite a riot/protest.”
Disregarding Officer Doe’s conclusory allegations, we find that Officer Doe has
not alleged facts that would support a plausible claim that Mckesson can be
held liable for his injuries on a theory of civil conspiracy. Although Officer Doe
6
Case: 17-30864 Document: 00515069317 Page: 7 Date Filed: 08/08/2019
No. 17-30864
has alleged facts that support an inference that Mckesson agreed with
unnamed others to demonstrate illegally on a public highway, he has not pled
facts that would allow a jury to conclude that Mckesson colluded with the
unknown assailant to attack Officer Doe or knew of the attack and specifically
ratified it. The closest that Officer Doe comes to such an allegation is when he
states that Mckesson was “giving orders” throughout the demonstration. But
we cannot infer from this quite unspecific allegation that Mckesson ordered
the unknown assailant to attack Officer Doe. Lacking an allegation of this
pleading quality, Officer Doe’s conspiracy claim must and does fail.
3.
Finally, we turn to Officer Doe’s negligence theory. Officer Doe alleges
that Mckesson was negligent for organizing and leading the Baton Rouge
demonstration because he “knew or should have known” that the
demonstration would turn violent. We agree as follows.
Louisiana Civil Code article 2315 provides that “[e]very act whatever of
man that causes damage to another obliges him by whose fault it happened to
repair it.” The Louisiana Supreme Court has adopted a “duty-risk” analysis
for assigning tort liability under a negligence theory. This theory requires a
plaintiff to establish that (1) the plaintiff suffered an injury; (2) the defendant
owed a duty of care to the plaintiff; (3) the duty was breached by the defendant;
(4) the conduct in question was the cause-in-fact of the resulting harm; and (5)
the risk of harm was within the scope of protection afforded by the duty
breached. Lazard v. Foti, 859 So. 2d 656, 659 (La. 2003). Whether a defendant
owes a plaintiff a duty is a question of law. See Posecai v. Wal-Mart Stores,
Inc., 752 So. 2d 762, 766 (La. 1999); Bursztajn v. United States, 367 F.3d 485,
489 (5th Cir. 2004) (“Under Louisiana law, the existence of a duty presents a
question of law that ‘varies depending on the facts, circumstances, and context
of each case and is limited by the particular risk, harm, and plaintiff involved.’”
7
Case: 17-30864 Document: 00515069317 Page: 8 Date Filed: 08/08/2019
No. 17-30864
(quoting Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994))).
There is a “universal duty on the part of the defendant in negligence cases to
use reasonable care so as to avoid injury to another.” Boykin v. La. Transit
Co., 707 So. 2d 1225, 1231 (La. 1998). Louisiana courts elucidate specific duties
of care based on consideration of “various moral, social, and economic factors,
including the fairness of imposing liability; the economic impact on the
defendant and on similarly situated parties; the need for an incentive to
prevent future harm; the nature of defendant’s activity; the potential for an
unmanageable flow of litigation; the historical development of precedent; and
the direction in which society and its institutions are evolving.” Posecai, 752
So. 2d at 766.
We first note that this case comes before us from a dismissal on the
pleadings alone. In this context, we find that Officer Doe has plausibly alleged
that Mckesson breached his duty of reasonable care in the course of organizing
and leading the Baton Rouge demonstration. The complaint specifically
alleges that it was Mckesson himself who intentionally led the demonstrators
to block the highway. Blocking a public highway is a criminal act under
Louisiana law. See La. Rev. Stat. Ann. § 14:97. As such, it was patently
foreseeable that the Baton Rouge police would be required to respond to the
demonstration by clearing the highway and, when necessary, making arrests.
Given the intentional lawlessness of this aspect of the demonstration,
Mckesson should have known that leading the demonstrators onto a busy
highway was most nearly certain to provoke a confrontation between police
and the mass of demonstrators, yet he ignored the foreseeable danger to
officers, bystanders, and demonstrators, and notwithstanding, did so anyway.
By ignoring the foreseeable risk of violence that his actions created, Mckesson
failed to exercise reasonable care in conducting his demonstration.
8
Case: 17-30864 Document: 00515069317 Page: 9 Date Filed: 08/08/2019
No. 17-30864
Officer Doe has also plausibly alleged that Mckesson’s breach of duty was
the cause-in-fact of Officer Doe’s injury and that the injury was within the
scope of the duty breached by Mckesson. It may have been an unknown
demonstrator who threw the hard object at Officer Doe, but by leading the
demonstrators onto the public highway and provoking a violent confrontation
with the police, Mckesson’s negligent actions were the “but for” causes of
Officer Doe’s injuries. See Roberts v. Benoit, 605 So. 2d 1032, 1052 (La. 1992)
(“To meet the cause-in-fact element, a plaintiff must prove only that the
conduct was a necessary antecedent of the accident, that is, but for the
defendant’s conduct, the incident probably would not have occurred.”).
Furthermore, as the purpose of imposing a duty on Mckesson in this situation
is to prevent foreseeable violence to the police and bystanders, Officer Doe’s
injury, as alleged in the pleadings, was within the scope of the duty of care
allegedly breached by Mckesson.
We iterate what we have previously noted: Our ruling at this point is not
to say that a finding of liability will ultimately be appropriate. At the motion
to dismiss stage, however, we are simply required to decide whether Officer
Doe’s claim for relief is sufficiently plausible to allow him to proceed to
discovery. We find that it is.
B.
Having concluded that Officer Doe has stated a plausible claim for relief
against Mckesson under state tort law, we will now take a step back and
address the district court’s determination that Officer Doe’s complaint should
be dismissed based on the First Amendment. The Supreme Court has made
clear that “[t]he First Amendment does not protect violence.” N.A.A.C.P. v.
Claiborne Hardware Co., 458 U.S. 886, 916 (1982). Nonetheless, the district
court dismissed the complaint on First Amendment grounds, reasoning that
“[i]n order to state a claim against Mckesson to hold him liable for the tortious
9
Case: 17-30864 Document: 00515069317 Page: 10 Date Filed: 08/08/2019
No. 17-30864
act of another with whom he was associating during the demonstration,
Plaintiff would have to allege facts that tend to demonstrate that Mckesson
‘authorized, directed, or ratified specific tortious activity.’” See id. at 927. The
district court then went on to find that there were no plausible allegations that
Mckesson had done so in his complaint.
The district court appears to have assumed that in order to state a claim
that Mckesson was liable for his injuries, Officer Doe was required to allege
facts that created an inference that Mckesson directed, authorized, or ratified
the unknown assailant’s specific conduct in attacking Officer Doe. This
assumption, however, does not fit the situation we address today. Even if we
assume that Officer Doe seeks to hold Mckesson “liable for the unlawful
conduct of others” within the meaning of Claiborne Hardware, the First
Amendment would not require dismissal of Officer Doe’s complaint. Id. In
order to counter Mckesson’s First Amendment defense at the pleading stage
Officer Doe simply needed to plausibly allege that his injuries were one of the
“consequences” of “tortious activity,” which itself was “authorized, directed, or
ratified” by Mckesson in violation of his duty of care. See id. (“[A] finding that
[the defendant] authorized, directed, or ratified specific tortious activity would
justify holding him responsible for the consequences of that activity.”). Our
discussion above makes clear that Officer Doe’s complaint does allege that
Mckesson directed the demonstrators to engage in the criminal act of
occupying the public highway, which quite consequentially provoked a
confrontation between the Baton Rouge police and the protesters, and that
Officer Doe’s injuries were the foreseeable result of the tortious and illegal
conduct of blocking a busy highway.
We focus here on the fact that Mckesson “directed . . . specific tortious
activity” because we hold that Officer Doe has adequately alleged that his
injuries were the result of Mckesson’s own tortious conduct in organizing a
10
Case: 17-30864 Document: 00515069317 Page: 11 Date Filed: 08/08/2019
No. 17-30864
foreseeably violent protest. In Mckesson’s petition for rehearing, he expresses
concern that the panel opinion permits Officer Doe to hold him liable for the
tortious conduct of others even though Officer Doe merely alleged that he was
negligent, and not that he specifically intended that violence would result. We
think that Mckesson’s criticisms are misplaced. We perceive no Constitutional
issue with Mckesson being held liable for injuries caused by a combination of
his own negligent conduct and the violent actions of a another that were
foreseeable as a result of that negligent conduct. The permissibility of such
liability is a standard aspect of state law. See Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 19 (2010) (“The conduct of a
defendant can lack reasonable care insofar as it foreseeably combines with or
permits the improper conduct of the plaintiff or a third party.”). There is no
indication in Claiborne Hardware or subsequent decisions that the Supreme
Court intended to restructure state tort law by eliminating this principle of
negligence liability.
We of course acknowledge that Mckesson’s negligent conduct took place
in the context of a political protest. It is certainly true that “the presence of
activity protected by the First Amendment imposes restraints on the grounds
that may give rise to damages liability and on the persons who may be held
accountable for those damages.” Claiborne Hardware, 468 U.S. at 916–17. But
Claiborne Hardware does not insulate the petitioner from liability for his own
negligent conduct simply because he, and those he associated with, also
intended to communicate a message. See id. at 916 (“[T]he use of weapons,
gunpowder, and gasoline may not constitutionally masquerade under the guise
of advocacy.”) (internal quotation marks and citations omitted). Furthermore,
although we do not understand the petitioner to be arguing that the Baton
Rouge police violated the demonstrators’ First Amendment rights by
attempting to remove them from the highway, we note that the criminal
11
Case: 17-30864 Document: 00515069317 Page: 12 Date Filed: 08/08/2019
No. 17-30864
conduct allegedly ordered by Mckesson was not itself protected by the First
Amendment, as Mckesson ordered the demonstrators to violate a reasonable
time, place, and manner restriction by blocking the public highway. See Clark
v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (reasonable time,
place, and manner restrictions do not violate the First Amendment). As such,
no First Amendment protected activity is suppressed by allowing the
consequences of Mckesson’s conduct to be addressed by state tort law.
Thus, on the pleadings, which must be read in a light most favorable to
Officer Doe, the First Amendment is not a bar to Officer Doe’s negligence
theory. The district court erred by dismissing Officer Doe’s complaint—at the
pleading stage—as barred by the First Amendment. 4
C.
Now we turn our attention to whether Officer Doe has stated a claim
against Black Lives Matter. The district court took judicial notice that “‘Black
Lives Matter,’ as that term is used in the Complaint, is a social movement that
was catalyzed on social media by the persons listed in the Complaint in
response to the perceived mistreatment of African-American citizens by law
enforcement officers.” Based on this conclusion, the district court held that
Black Lives Matter is not a “juridical person” capable of being sued. See
4 We emphasize, however, that our opinion does not suggest that the First Amendment
allows a person to be punished, or held civilly liable, simply because of his associations with
others, unless it is established that the group that the person associated with “itself possessed
unlawful goals and that the individual held a specific intent to further those illegal aims.”
Claiborne Hardware, 458 U.S. at 920. But we also observe that, in any event, Officer Doe’s
allegations are sufficient to state a claim that Black Lives Matter “possessed unlawful goals”
and that Mckesson “held a specific intent to further those illegal aims.” See id. Officer Doe
alleges that Black Lives Matter “plann[ed] to block a public highway,” and, in his amended
complaint, that Mckesson and Black Lives Matter traveled to Baton Rouge “for the purpose
of . . . rioting.” (emphasis added).
12
Case: 17-30864 Document: 00515069317 Page: 13 Date Filed: 08/08/2019
No. 17-30864
Ermert, 559 So. 2d at 474. We first address the district court’s taking of judicial
notice, then Black Lives Matter’s alleged capacity to be sued.
Federal Rule of Evidence 201 provides that a court may take judicial
notice of an “adjudicative fact” if the fact is “not subject to reasonable dispute”
in that it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot be questioned. Fed. R. Evid. 201(b). “Rule 201
authorizes the court to take notice only of ‘adjudicative facts,’ not legal
determinations.” Taylor v. Charter Med. Corp., 162 F.3d 827, 831 (5th Cir.
1998). In Taylor, we held that another court’s state actor determination was
not an “adjudicative fact” within the meaning of Rule 201 because “[w]hether
a private party is a state actor for the purposes of § 1983 is a mixed question
of fact and law and is thus subject to our de novo review.” Id. at 830–31. We
further held that the state-actor determination was not beyond reasonable
dispute where it “was, in fact, disputed by the parties” in the related case. Id.
at 830.
We think that the district court was incorrect to take judicial notice of a
mixed question of fact and law when it concluded that Black Lives Matter is a
“social movement, rather than an organization or entity of any sort.” The legal
status of Black Lives Matter is not immune from reasonable dispute; and,
indeed, it is disputed by the parties—Doe claiming that Black Lives Matter is
a national unincorporated association, and Mckesson claiming that it is a
movement or at best a community of interest. This difference is sufficient
under our case law to preclude judicial notice.
We should further say that we see the cases relied on by the district court
as distinguishable. Each deals with judicial notice of an aspect of an entity,
not its legal form. See United States v. Parise, 159 F.3d 790, 801 (3d Cir. 1998)
(holding that the court could take judicial notice of the aims and goals of a
13
Case: 17-30864 Document: 00515069317 Page: 14 Date Filed: 08/08/2019
No. 17-30864
movement); Atty. Gen. of U.S. v. Irish N. Aid. Comm., 530 F.Supp.241, 259–60
(S.D.N.Y. 1981) (stating the court could take “notice that the IRA is a
‘Republican movement,’ at least insofar as it advocates a united Ireland”
(emphasis added)); see also Baggett v. Bullitt, 377 U.S. 360, 376 n.13 (1964)
(noting that “[t]he lower court took judicial notice of the fact that the
Communist Party of the United States . . . was a part of the world Communist
movement” (emphasis added)).
Now, we move on to discuss the merits of Officer Doe’s contention that
Black Lives Matter is a suable entity. He alleges that Black Lives Matter “is
a national incorporated association with chapter [sic] in many states.” Under
Federal Rule of Civil Procedure 17(b), the capacity of an entity “to sue or be
sued is determined . . . by the law of the state where the court is located.”
Under Article 738 of the Louisiana Code of Civil Procedure, “an unincorporated
association has the procedural capacity to be sued in its own name.” The
Louisiana Supreme Court has held that “an unincorporated association is
created in the same manner as a partnership, by a contract between two or
more persons to combine their efforts, resources, knowledge or activities for a
purpose other than profit or commercial benefit.” Ermert, 559 So. 2d at 473.
“Interpretation of a contract is the determination of the common intent of the
parties.” La. Civ. Code Ann. art. 2045. To show intent, “the object of the
contract of association must necessarily be the creation of an entity whose
personality ‘is distinct from that of its members.’” Ermert, 559 So. 2d at 474
(quoting La. Civ. Code Ann. art. 24). Louisiana law does not provide for a
public display of the parties’ intent. Id.
Louisiana courts have looked to various factors as indicative of an intent
to create an unincorporated association, including requiring dues, having
insurance, ownership of property, governing agreements, or the presence of a
formal membership structure. See Bogue Lusa Waterworks Dist. v. La. Dep’t
14
Case: 17-30864 Document: 00515069317 Page: 15 Date Filed: 08/08/2019
No. 17-30864
of Envtl. Quality, 897 So. 2d 726, 728–729 (La. Ct. App. 2004) (relying on
organization’s unfiled articles of incorporation); Friendship Hunting Club v.
Lejeune, 999 So. 2d 216, 223 (La. Ct. App. 2008) (relying on organization’s
required dues and possession of an insurance policy); see also Concerned
Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663, 675
(E.D. La. 2010) (relying on organization’s formal and determinate membership
structure). Lacking at least some of these indicators, Louisiana courts have
been unwilling to find an intent to create an unincorporated association. See,
e.g., Ermert, 559 So. 2d at 474–475 (finding that hunting group was not an
unincorporated association because it did not own or lease the property that it
was based on, required the permission of one of its alleged members to use the
property, and lacked formal rules or bylaws).
Officer Doe has not shown in his complaint a plausible inference that
Black Lives Matter is an unincorporated association. His only allegations are
that Black Lives Matter: (1) was created by three women; (2) has several
leaders, including Mckesson; (3) has chapters in many states; and (4) was
involved in numerous protests in response to police practices. He does not
allege that it possesses property, has a formal membership, requires dues, or
possesses a governing agreement. As such, the complaint lacks any indication
that Black Lives Matter possesses the traits that Louisiana courts have
regarded as indicative of an intent to establish a juridical entity. We have no
doubt that Black Lives Matter involves a number of people working in concert,
but “an unincorporated association . . . . does not come into existence or
commence merely by virtue of the fortuitous creation of a community of
interest or the fact that a number of individuals have simply acted together.”
Id. at 474. Therefore, we find that the district court did not err in concluding
15
Case: 17-30864 Document: 00515069317 Page: 16 Date Filed: 08/08/2019
No. 17-30864
that Officer Doe’s complaint has failed plausibly to allege that Black Lives
Matter is an entity capable of being sued. 5
V.
In sum, we hold that Officer Doe has not adequately alleged that
Mckesson was vicariously liable for the conduct of the unknown assailant or
that Mckesson entered into a civil conspiracy with the purpose of injuring
Officer Doe. We do find, however, that Officer Doe adequately alleged that
Mckesson is liable in negligence for organizing and leading the Baton Rouge
demonstration to illegally occupy a highway. We further find that in this
context the district court erred in dismissing the suit on First Amendment
grounds. As such, Officer Doe has pleaded a claim for relief against DeRay
Mckesson in his active complaint. 6 We also hold that the district court erred
by taking judicial notice of the legal status of “Black Lives Matter,” but
nonetheless find that Officer Doe did not plead facts that would allow us to
conclude that Black Lives Matter is an entity capable of being sued. 7
Therefore, the judgment of the district court is AFFIRMED in part,
5 We do not address as to whether Officer Doe could state a claim against an entity
whose capacity to be sued was plausibly alleged, nor do we address whether Mckesson could
be held liable for the actions of that entity under state law.
6 Officer Doe has complained of the lack of discovery in this case, particularly related
to his claims against the corporate defendants. Officer Doe is free to argue before the district
court that he is entitled to discovery. The district court may then decide whether, in the light
of our remand, discovery would be appropriate.
7 Because we find that Officer Doe has successfully pled a claim, we do not reach the
district court’s denial of Officer Doe’s motion for leave to amend. See Lormand v. US
Unwired, Inc., 565 F.3d 228, 268 n.36 (5th Cir. 2009) (citing Xerox Corp. v. Genmoora Corp.,
888 F.2d 345, 358 n.70 (5th Cir. 1989)). It follows that we do not address any of the
allegations in the Proposed Amended Complaint or the parties it seeks to add. On remand,
Officer Doe may seek leave to amend his complaint to add new parties and plead additional
facts to support his negligence claim. The district court should determine whether to grant
this motion, and any new motions for leave to amend, in the light of our opinion.
16
Case: 17-30864 Document: 00515069317 Page: 17 Date Filed: 08/08/2019
No. 17-30864
REVERSED in part, and the case is REMANDED for further proceedings not
inconsistent with this opinion. 8
AFFIRMED in part, REVERSED in part, and REMANDED.
8 On appeal, Officer Doe also argues that the district court erred in denying his request
to proceed anonymously as John Doe. He argues that the public nature of his job puts him
and his family in danger of additional violence. At the district court, he listed a number of
examples of acts of violence against police officers by individuals who may have some
connection with Black Lives Matter. In its order, the district court walked through three
factors common to anonymous-party suits that we have said “deserve considerable weight.”
Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). These are: (1) whether the plaintiff is
“challeng[ing] governmental activity”; (2) whether the plaintiff will be required to disclose
information “of the utmost intimacy”; and (3) whether the plaintiff will be “compelled to admit
[his] intention to engage in illegal conduct, thereby risking criminal prosecution.” Id. at 185.
The district court concluded that none of these factors applied to the facts of this case. In
response to Officer Doe’s argument regarding potential future violence, the district court
noted that the incidents Officer Doe listed did not involve Officer Doe and were not related
to this lawsuit. In fact, at oral argument before the district court regarding his motion,
Officer Doe conceded that he had received no particularized threats of violence since filing
his lawsuit. The district court instead saw the incidents Officer Doe listed as evidence of “the
generalized threat of violence that all police officers face.” As a result, the district found that
Doe had not demonstrated a privacy interest that outweighs the “customary and
constitutionally embedded presumption of openness in judicial proceedings.” Id. at 186. We
agree with the district court and affirm the denial of Doe’s motion to proceed anonymously.
In so holding, we emphasize what the Supreme Court said decades ago: “What transpires in
the court room is public property.” Craig v. Harney, 331 U.S. 367, 374 (1947).
17